Citation Nr: 1210338
Decision Date: 03/20/12 Archive Date: 03/30/12
DOCKET NO. 10-05 074 ) DATE
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On appeal from the
Department of Veterans Affairs South Central Health Care Network in Ridgeland, Mississippi
THE ISSUE
Entitlement to payment or reimbursement of unauthorized medical expenses incurred from April 25 to 26, 2009, at the Skaggs Regional Medical Center, in Branson, Missouri.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Biswajit Chatterjee, Counsel
INTRODUCTION
The Veteran served on active duty from August 1969 to April 1971.
This appeal to the Board of Veterans' Appeals (Board) is from decisions of the Department of Veterans Affairs (VA) South Central VA Health Care Network. Because this appeal concerns payment or reimbursement of unauthorized medical expenses, the local VA Medical Center (VAMC) decided the claim and, therefore, is the agency of original jurisdiction (AOJ), rather than the local Regional Office (RO). The AOJ initially denied his claim in an August 2009 decision and continued to deny the claim on reconsideration review in December 2009.
The Veteran testified at a videoconference hearing at the RO in St. Louis, Missouri, in November 2010, before the undersigned Acting Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file.
FINDINGS OF FACT
1. The Veteran is an active VA health-care participant who is personally liable for emergency treatment furnished from April 25 to 26, 2009, at the Skaggs Regional Medical Center, in Branson, Missouri. He had no health insurance.
2. The totality of the evidence reveals that the Veteran's care was rendered in a "medical emergency" of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.
3. A VA facility was not feasibly available and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement for unauthorized medical expenses incurred from April 25 to 26, 2009, at the Skaggs Regional Medical Center, in Branson, Missouri, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2011); 38 C.F.R. § 17.1002 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the present appeal, the Veteran is seeking reimbursement for medical expenses incurred for treatment he received at the Skaggs Regional Medical Center, a non-VA facility, in Branson, Missouri.
In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA. See 38 U.S.C.A. § 1703(a) (West 2002). In this case, it has not been alleged, nor does the evidence demonstrate, that VA contracted with Skaggs Regional Medical Center to furnish for any of services enumerated in 38 U.S.C.A. § 1703 to the Veteran.
When, as here, a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2011). Application of either statute is generally dependent on whether he has an adjudicated service-connected disability. The Board recognizes that 38 U.S.C.A. §§ 1725 and 1728 were amended, effective October 10, 2008. Pub. L. 110-387, Title IV, § 402(a), 122 Stat. 4123. The Board applies the amended version of these statutes and implementing regulations since the Veteran's claim and incident of unauthorized care arise in 2009, well after the 2008 amendments became effective. Amendments were again made to 38 U.S.C.A. § 1725, effective February 1, 2010, and pertain to payment made on a Veteran's behalf by a third party; because the issue of insurance coverage is not in dispute (he has none), the Board does not further consider the 2010 amendments.
Under the amended provisions 38 U.S.C.A. § 1728, effective from October 2008, payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA, shall [italicized for emphasis] be paid when the Veteran received care for: (1) an adjudicated service-connected disability; (2) a non-service-connected disability associated with and held to be aggravating a service-connected disability; (3) any disability of a Veteran if the Veteran has a total disability permanent in nature from a service-connected disability; or (4) any illness, injury, or dental condition of a Veteran who is a participant in a vocational rehabilitation program (under 38 U.S.C. Chapter 31) and is medically determined to have been in need of care or treatment to make possible the Veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. 38 U.S.C.A. § 1728(a).
However, the Veteran in this case is only service-connected for a left knee degenerative joint disease disability (rated as 10 percent disabling), which is unrelated to the abdominal pain and hernia for which he was hospitalized. He also does not contend he participated in a vocational rehabilitation program at the time of his hospitalization. As such, he does not meet the requisite eligibility requirements under 38 U.S.C.A. § 1728(a) for payment or reimbursement of these unauthorized medical expenses.
Alternatively, a claimant may still be entitled to reimbursement for unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1725, which authorizes payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders if certain conditions are met. Generally, 38 U.S.C.A. § 1725(b) provides that an eligible Veteran is one who is an active VA health-care participant and who is personally liable for emergency treatment furnished in a non-VA facility.
As amended effective October 2008, the term "emergency treatment" means medical care or services furnished: (a) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (b) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (c) until (i) such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer, or (ii) such time as a Department facility or other Federal facility accepts such transfer if, first, at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer and, second, the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a Department facility or other Federal facility. 38 U.S.C.A. § 1725(f)(1).
The regulatory provisions in 38 C.F.R. § 17.1002 implement the statutory provisions of 38 U.S.C.A. § 1725, clarify the requirements for this case as follows, in pertinent part: (a) the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) the claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part); (c) a VA or other Federal facility/provider was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson; (d) the claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely transferred to a VA or other Federal facility; (e) At the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The Veteran is financially liable to the provider of emergency treatment for that treatment; (g) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. 38 C.F.R. § 17.1002 (2011). These criteria under 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991).
Under VA regulation, 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.
In this case, the provisions of 38 C.F.R. § 17.1002(e) through (g) are readily met. At the outset, the Veteran had been an active VA health-care participant within the 24-month period preceding the emergency treatment in question, as indicated by both his testimony and references in his June 2011 rating decision to VA outpatient treatment records. 38 C.F.R. § 17.1002(e). A collection agency bill, dated in September 2009, shows the Veteran is personally liable for $3,538.68 at Skaggs and notes no pending insurance payments. 38 C.F.R. § 17.1002(f) and (g).
The crucial remaining issues for consideration are: (1) whether the expenses incurred were for "emergency treatment," and (2) whether a VA facility was not feasibly available.
Concerning the question of emergency treatment, the records from his April 2009 treatment at Skaggs indicate treatment in the E.D. (emergency department) at the Skaggs Regional Medical Center, thus meeting the requirement for treatment from a hospital emergency department. 38 C.F.R. § 17.1002(a).
However, a reviewing VA physician's statement, dated in December 2009, found that the Veteran's history showed symptoms for some period of time and concluded findings were not consistent with an emergent condition. The Board does not find the statement persuasive in light of a review of the lay statements and Skaggs medical records.
A review of the record reveals that he initially sought emergency department treatment at the Skaggs Regional Medical Center on April 25, 2009 for abdominal pain, which had its onset five days prior while moving a box, but apparently progressed in severity. The Veteran drove to Skaggs in his own private vehicle.
The Veteran clarified in his personal hearing testimony that he felt a "tear" or "rip" in his stomach area where he had previously had surgery for an umbilical hernia patch. Whereas his "immediate pain was not of any great amount" earlier in the week, by that weekend the condition was worsening. Prior to seeking emergency treatment, the Veteran described that he had "extreme pain" and pain "beyond comprehension," and his movement was "totally restricted." The Veteran is competent to make these lay statements as they pertain to the realm of lay observation and experience; and since supported by the record, they are also seemingly credible. See generally Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
Indeed, the Veteran's statements are corroborated by hospital records, which show he presented with complaints of sharp abdominal pains. The emergency department objectively described the pains, noted to be in the left lower quadrant, as "severe," worsened by movement, and initially not relieved by any treatment. He was subsequently found to have a small, left Bochdalek hernia on CT scan. Clinical impressions were of abdominal strain and acute abdominal pain of undetermined cause. It appears he was discharged by April 26, 2009.
The totality of the evidence reveals that the Veteran's care was rendered in a "medical emergency" of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 38 C.F.R. § 17.1002(b); See Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009) (VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent). Importantly, the salient issue is not whether the situation is ultimately life threatening; rather, as in this case, it is whether the Veteran (acting as a prudent layperson) thought the symptoms were of such as nature that delay in seeking immediate medical attention would have been hazardous to life or health at the time the symptoms were occurring.
Turning to the next crucial element of this claim-whether VA facilities were feasibly available. The Board acknowledges the December 2009 statement by the VA reviewing physician also found care at a VA facility was feasibly available. Nonetheless, the Board does not find the statement persuasive in light of the evidence.
The Veteran testified that he absolutely could not have driven to the nearest VAMC in Fayetteville, Arkansas, which he alleges was over a two hour drive, with his extreme abdominal pain; whereas Skaggs was located in the same town as his residence. In this respect, the Board takes judicial notice that the nearest VA emergency room from the Veteran's home was the Fayetteville VAMC, approximately 103 miles away, which is over a two hour drive, as alleged. Given the Veteran's apparent level of distress, a prudent layperson would not endure a two-hour drive in order to receive emergency treatment. That would simply be unreasonable and unwise. The length of the delay would have been too long given the circumstances. Therefore, the Veteran's particular situation meets this criterion that a VA facility was not feasibly available.
See 38 C.F.R. § 17.1002(c).
The Veteran did not remain at Skaggs Regional Medical Center beyond the point of stabilization. From review of the record, he had a continuing medical emergency that would be expected to prevent a safe transfer to a VA facility. Indeed, he was only hospitalized for short duration, also making such a transfer unnecessary. He even required a CT scan to rule out possible incarcerated hernia before treating physicians could confirm his condition was stabilizing. 38 C.F.R. § 17.1002(d).
In sum, the Board finds that all the criteria have been met under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 for the Veteran's claim. Thus, the Board concludes that the appeal must be granted.
ORDER
The claim for payment or reimbursement of the unauthorized medical expenses incurred from April 25 to 26, 2009, at the Skaggs Regional Medical Center, in Branson, Missouri, is granted, subject to the payment limitations set forth in 38 C.F.R. § 17.1005 (2011).
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RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs